Stewart v. Cybur Lumber Co.

• Decision Date: 10 February 1914
• Citation: 211 F. 343
• Parties: STEWART v. CYBUR LUMBER CO.
• Court: U.S. District Court — Southern District of Alabama

211 F. 343

STEWART v. CYBUR LUMBER CO.

United States District Court, S.D. Alabama.

February 10, 1914

Stevens McCorvey & Dean, of Mobile, Ala., for defendant.

TOULMIN District Judge.

Motion by defendant to dismiss the case for want of prosecution.

This case is here by removal proceedings from the circuit court of Pearl River county of the state of Mississippi. The removal is founded on the fact that the action is between citizens of different states. Where the jurisdiction of the federal court is founded on the fact of diverse citizenship, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. The plaintiff failed to do either, but brought his suit against the defendant in a state and district of which both were nonresidents.

A suit commenced in a state court in a federal district, in which neither the plaintiff nor the defendant resides, cannot be removed to the District Court of such district by the nonresident defendant on the ground of diverse citizenship as such court would have had no jurisdiction of the same as an original suit. Gruetter v. Cumberland Telephone &amp Telegraph Co. (C.C.) 181 F. 249; Smellie v. Southern Pac. Co. (D.C.) 197 F. 641.

'No cause can be removed' into a federal court 'unless it is one which could have been originally brought in that court. ' Younts v. Southwestern Telegraph & Telephone Co. (C.C.) 192 F. 200; Waterman v. Chesapeake & O. Ry. Co. (D.C.) 199 F. 667.

'A plaintiff instituting a suit in the federal court of a district other than that of the residence of either of the parties, waives thereby the wrong venue, and the provision authorizing venue in the district of his (plaintiff's) residence. ' Decker, Jr., & Co. v. Southern Ry. Co. (C.C.) 189 F. 224.

The defendant had a right to remove the suit to a federal court. The right of removal given by the statute is to the 'proper district,' and this right of removal cannot be defeated by the act of the plaintiff in bringing his suit in the state court of Mississippi in which neither party resided. Mattison v. Boston & M.R.R. (D.C.) 205 F. 821.

For the defendant to remove the suit to the 'proper district' is to remove it to the district court where he resides, and which is one that has original jurisdiction of the suit, and in which it could have been brought.

The case of Mattison v. Boston & M.R.R., supra, was, where a citizen of Vermont brought suit against a citizen of Massachusetts in a state court of New York. The defendant removed the case to the district court of the United States for the Northern District of New York, in which district the action was brought. The plaintiff moved to remand the cause on the ground that said District Court of the United States had no jurisdiction, and that the cause could not be removed to that court, inasmuch as neither the plaintiff nor the defendant was a citizen or resident of the state of New York. The court granted the motion to remand the cause to the state court of New York. In its opinion the court said:

'As the * * * plaintiff may bring his action against the defendant in the District Court of the

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